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An interesting study on Facebook as a job predictor is making the rounds on the internet. It is a serious study published in the Journal of Applied Social Psychology. Perhaps its most interesting feature is that it maps the content of participants' Facebook pages onto scales for the Big Five personality traits.

The Big Five are the five very broad but stable personality traits that have emerged from over 50 years of psychological research on personality and job performance. The Big Five are sometimes summarized by the acronym OCEAN: Openness to Experience, Conscientiousness, Extroversion, Agreeableness, and Neuroticism (this last measure is often referred to as Emotional Stability, which has a less clinical ring). Each of the Big Five traits is typically comprised of four or five subconstructs. (Go to this link to take for free the same Big Five assessment used in the study.)

The Big Five are connected to research on lawyers through the landmark Shultz-Zedeck Predicting Lawyer Effectiveness study. One of the personality assessments utilized by Shultz and Zedeck was the Hogan Personality Inventory (HPI), which is seven-scale instrument based on the Big Five. Shultz and Zedeck identified 26 lawyer effectiveness factors and subsequently assembled a sample of peer and supervisor evaluations on over 1,100 graduates of UC Berkeley and UC Hastings. The HPI scales were positively correlated at statistically significant levels with a combined 25 of 26 effectiveness factors. In contrast, academic predictors (UGPA, LSAT and 1st year grades) were correlated with a combined total of 11 effectiveness factors, albeit two of the correlations were negative.

One of the limitations of most personality tests is the self-reported nature of the data. The test-taker is often interested in managing impressions. In contrast, the test adminstrators are trying to measure the respondents' actual attitudes and behaviors. Well, on that count, Facebook reveals quite a bit. In fact, raters with a mere two hours of training obtained Big Five measures of study participants' personalities that were (a) strongly correlated with the self-reported measures but (b) better predictors of subsequent job performance.

The implication? Someday a computer spider may be mining Facebook pages to create employability profiles on job candidates. Such a product may be too cheap and too useful for employers to ignore -- potentially better and faster, and less discriminatory, than the current ubquitious Google search.

Here is a interesting video on how large firm lawyers (specifically lawyers at Duane Morris) are getting training on the basic of good presentations skills. The touchstones are stories and humor. The method for acquiring these skills is practice and feedback. Some folks might think this is obvious and thus too simplistic or basic to invest in. The result: a knowing-doing gap. I see is over and over again.

The short case study overview of the training (albeit written by the trainers) is online here.

The American Bar Foundation (ABF) invites scholars to join our intellectual community for the 2012-2013 academic year.

The ABF encourages national and international scholars on leave or sabbatical to take advantage of our diverse community and excellent facilities. We offer an office, telephone, and computer, but no stipend.

Preference will be given to visitors whose scholarship coincides with the research agenda of the ABF and who will be in residence full-time for all or part of the year. Summer visits are possible. Visitors are expected to participate in the intellectual life of the ABF, including a weekly seminar.

If you have an interest in this opportunity, please send an email to Robert Nelson at rnelson@abfn.org, subject line: Visiting Scholars Program, which states (1) the topic on which you are working, (2) the preferred dates for residence, (3) the days each week you would expect to be at the ABF, and (4) attach a CV. Applications should be received by April 1, 2012. Applications will be considered as space allows. The ABF Appointments Committee will review applications and prospective visitors will be notified accordingly.

In his post, Ron makes the point that you can't improve something that you don't understand. So step #1 is taking the time to deconstruct and analyze. Drawing an example from a recent article in the Association of Corporate Counsel (ACC) Docket, Ron writes:

[J]ust saying “you have a 60% percent change of winning” raises three problems. First, unless a client faces multiple similar cases, it’s hard to understand what that single probability measures. Second, this probability - whether or not accompanied by another common measure, expected value - does not communicate the range of possible outcomes. An 80% chance of winning may be irrelevant if there is a 5% chance of a company-killing outcome. And third, our word choice influences how we think and how we decide.

On this third factor, Ron cites an example from the recent book by Nobel Laureate Dan Kahneman, Thinking, Fast and Slow, where numerous studies have shown that medical patients respond in very different way to "90% chance of success" versus "10% chance of mortality." A host of "fast-thinking" processes are at work that keep the mind from treating these two statements the same -- fast thinking being a blend of emotions and mental short-cuts that don't bother to check for logical consistency.

Kahneman demonstrates that these errors are a recurring part of the human condition -- indeed, he and his long-time co-author, Amos Tversky, agreed that they would not study a cognitive bias unless it first passed a single test: the bias had to be observable in Kahneman's and Tversky's own thinking. As Kahneman admits in the book, "We were studying ourselves." So good luck to lawyers who think they are too smart to make mistakes.

The host of cognitive biases gumming up lawyer-client communications reminded me of this wonderful cartoon that was included in my Legal Project Management and Process Improvement Seminar I took back in 2010 [click to enlarge -- it's worth it].

I think Ron is 100% right. It is possible to turn lawyer-client communication into a process, or more precisely, a set of interdependent processes. It requires a whole lot of thinking up front -- to many law firms, this is a quandary because the time cannot be billed. But hey, it is a multi-million dollar problem.

Further, when the processes are complete and deployed (note: processes are never really complete, so let's call this the 2.0 version), it won't feel mechanical. Instead, it will feel efficient, effective and respectful. The client who feels understood and responded to is the client who returns with more work and tells his or her friends about the experience.

Very few people will answer this question correctly. To find the correct answer, and get a good laugh, watch this video. Here is the good news -- collaboration is teachable. In fact, you used to be very good at it.

A new paper by Prof. Richard Bourne of the University of Baltimore. Bourne has been teaching for over 30 years, following five years in practice and time as a teaching fellow at Harvard. I find the reflections of long time participants in legal education to be useful inputs in evaluating how things have changed. This is an interesting paper with much to offer.

The abstract:

This paper will first track the ways in which the legal services market has grown and changed over the past forty years. It will then track the major changes that have attended legal education during the same period and the increasing dependence of the legal education industry on student debt. The paper will then explore why, at long last, the boom-times may have run their course and why, at some point, painful changes will likely occur. Though they cannot be described in detail, the author will attempt to outline the likely nature of the changes that will occur. Finally, the paper will briefly explore how the predicted reckoning may yet lead to an improvement in the marketing of legal services and an enhanced role for law schools in preparing new attorneys for the new bar they will be joining.

There's quite a bit of provocative stuff in here (on the chopping block are clinics, faculty scholarship, "law and.." courses, merit scholarships, and light course loads!) but also the traditional laments about U.S. News:

If law schools could somehow eliminate or seriously weaken the impact of U.S. News rankings they could begin to cut back in a big way on many of the marketing costs that currently burden legal education.

It isn't a "ruinous U.S. News sweepstakes" that drives the cost structure of legal education. Brochures and other marketing measures are a tiny fraction of even a single entry level professor's salary. The law school cost structure is largely salaries. I do agree with Bourne (especially since he cites Bill's and my work on this point) that competition for rankings has shifted financial aid to merit aid and away from need based aid, with deleterious consequences for the profession, legal education, and general social mobility.

But, as Bill and I have written elsewhere, if law schools released more useful data for students to use and facilitated such comparisons, U.S. News would be less important. It is important precisely because law schools don't make it easy to compare across schools while applicants making massive investments in education desperately want to compare their options. Fill that need with something better than the current rankings and the U.S. News problem will solve itself.

Bourne notes in his conclusion,"The time has come to stop pursuing the ephemeral benefits of prestige, simply for the sake of prestige, and to deliver more in the way of value." That's much more important than fussing about U.S. News. But how to do that? A footnote at the end of Bourne's paper notes Alfred Z. Reed's thoughtful and provocative 1921 report, Training for the Public Profession of the Law and its argument for a wide range of legal training, producing different kinds of lawyers licensed to do different things. As Bourne notes Reed's report "was rejected as heretical by the organized bar." Maybe that's where to start the discussion.

Andrew Lo, who is both a professor at MIT's Sloan School and chief investment strategist for a hedge fund, has written a provocative piece (which has the added benefit of being short - just 9 pages) about the problem of "theory envy" in economics and its implications for teaching economics. "Theory envy" is the desire to be like physics and math, despite the inability to do controlled experimentation and empirical validation as physicists can. In a few, remarkably clearly written pages, Lo shows how theory envy has reduced the usefulness of economic thinking. He suggests that the solution is to develop "messier but more realistic empirical or experimental results" rather than simply "elegant theory under counterfactual assumptions." (p.7)

His insights into the implications for teaching economics are relevant for discussion here.

Unlike mathematics and physics, where gifted students can quickly develop intuition for some of the most fundamental concepts of the discipline, economics demands considerably greater institutional and historical context to achieve a comparable level of understanding. Although students of any introductory economics course can easily regurgitate the mathematics of supply and demand, until they witness the price-discovery process in action in a market that they care about, it is virtually impossible for them to fully appreciate both the power of the Marshallian cross as well as its many limitations in the face of trading costs, uncertainty, limited and asymmetric information, and institutional rigidities. ... One needs a minimum level of exposure to economic contexts and behavior before being able to develop new insights into its inner workings. (p. 7)

one natural innovation is to teach economics not from an axiomatic and technique-oriented perspective, but by posing challenges that can only be addressed through economic logic. Instead of starting microeconomics with the consumer’s problem of maximizing utility subject to a budget constraint, begin by challenging students to predict the impact of a gasoline tax on the price of gasoline, or asking them to explain why diamonds are so much more expensive than water, despite the fact that the latter is critical for survival unlike the former. Instead of starting macroeconomics with national income accounts, begin with the question of how to measure and manage the wealth of nations, or why inflation can be so disruptive to economic growth. Without the proper institutional, political, and historical context in which to interpret economic models, constrained optimization methods and fixed-point existence proofs have much less meaning and are more likely to give rise to theory envy. (p. 7)

This is an inversion at a minimum because many graduate (and even undergraduate) programs in economics do not do the contextual part at all, but focus almost entirely on the technical skills. I was lucky in my Ph.D. program (at MIT) to have professors like Michael Piore, Paul Joskow, and Jean Tirole who brought rich institutional knowledge to their teaching. Joskow's extensive experience in the utilities industry (and as MIT's point person for negotiations with utilities) made his teaching in industrial organization far more focused on the world than a pure theory approach. Piore's internal labor markets work epitomized learning from what happened in the world. And Tirole had a large supply of examples to illustrate his theoretical analyses (and cotaught with Joskow). But many of our courses were only tenuously related to the world outside the classroom.

Note that Lo is not advocating tossing theory out entirely, just putting it in context:

However, when students understand the “why” of their course of study, even the most complex mathematical tools can be mastered and are almost always applied more meaningfully.

For Ph.D. students, gaining exposure to live economic environments before they begin writing dissertations should be a priority, and can be accomplished via industry and government internships or field work. By observing or participating in real economic activity in the domain of their likely field of specialization, students will develop a much deeper sense of purpose as they begin their research careers in economics. (pp. 7-8)

How does this apply to law schools, which are not preparing students for "research careers" in the same way as Ph.D. programs? In two ways. First, if economists have a moderate case of theory envy, law professors have full-blown, massive infections. The success of "law and...." movements is one sign of this, but so is the emphasis on "paradigm shifting" and such in legal scholarship. Casebooks fill up with note material providing various theoretical perspectives. Longer and longer casebooks (which cost more and more) are the result - and it is not clear to me that students benefit sufficiently from the 100s of pages of note material to make it worth the cost to their wallets (or backs, from hauling these massive books from class to class). Reading cases and statutes themselves ought to be a start. The theory can come later, when students know enough to get more out of it.* Or maybe there should just be less of it.

Second, perhaps law schools should put more emphasis on students with life experience and less on LSATs. I'd have been in trouble as a student had that been the rule, but I think I got more out of my Ph.D. program - after 4 years of non-academic experience - than I did from my J.D., despite generally inferior teaching at the Ph.D. level to the teaching at the J.D. level. I would have been better at taking advantage of law school had I worked for a few years before law school. That doesn't mean everyone needs to do something besides study before law school, but richer pre-law school experiences for more students would be useful in the classroom by broadening the discussion. However, so long as US News evaluates law schools on the basis of LSATs and UGPA (and law schools and law students care about those rankings), the focus on LSAT and UGPA will remain.

There's a larger debate on theory in the legal academy and people's positions in that debate may influence their positions on theory's role in teaching. And theory is different in law - in economics there is pretty much "a theory". (And, as an economist, I think it's a darn good one - or at least better than the alternatives.) In law, we've got a diverse set of often contradictory theories.** In an economics department, it is pretty easy to decide what belongs in the introductory sequence of classes at the undergraduate and graduate levels. In law it is almost impossible to agree what belongs in, say, Torts (which is one reason those casebooks are so long - capturing market share means including something for as many professors as possible).

Setting those issues aside as much as possible, it still seems to me that the pendulum may have swung too far towards theory in teaching law. Over the past seven years, I've worked with Craig Boise (now dean at Cleveland Marshall) to build a class that teaches students how to do a variety of offshore financial transactions.*** We use lawyers, accountants, regulators, and others to teach students how to do transactions by showing them documents and explaining what the various people involved in the transactions actually do. We do a little theory - some international tax law concepts, a bit of constitutional law (to explain why some jurisdictions can do these types of transactions and others cannot), and some debate over the merits of allowing these types of transactions for both the onshore and offshore jurisdictions. But the theory takes a back seat to focusing on what lawyers do, why they do it, and how they do it. After a number of years of trying, we think we've hit the sweet spot in terms of the mix and that sweet spot has very little legal theory (or economic theory) in it. The sweet spot may differ across subject matters, of course.

Lo's essay is a pre-conference essay for what looks like a fascinating conference on "What Post-Crisis Changes Does the Economics Discipline Need?" being held this month in the UK. I don't think we need an equivalent conference of legal academics - instead we need a dialogue with the legal profession about where legal education fits into the future of a profession undergoing significant changes. John McGinnis and Russell Manges' recent proposal to change legal education to an undergraduate major might be a good place to start that dialogue, since such a change requires rethinking legal education from the ground up. Perhaps an undergraduate major is one way to get theory envy under control. But such a change would reduce, not enhance, the context-building of students' outside experience. McGinnis and Manges suggest that an undergraduate law degree might produce reinvorgated LL.M. programs. Those might then fill that niche.

* Richard Epstein describes his own initial legal education during two years at Oxford: “The only direction I got was being told to read the 19th-century judicial opinions.” He attributes his intellectual development to starting with primary source material in cases and Roman law rather than with modern legal theories, as his contemporaries did at Yale and Harvard. I discuss this further in my chapter on Epstein in Pioneers of Law and Economics.

**See C. Steven Bradford's brilliant essay "As I Lay Writing: How to Write Law Review Articles for Fun and Profit: A Law-and-Economics, Critical, Hermeneutical, Policy Approach and Lots of Other Stuff That Thousands of Readers Will Find Really Interesting and Therefore You Ought to Publish in Your Prestigious, Top-Ten, Totally Excellent Law Review" for a clever satire of legal scholarship's use of theories.

*** Offshore does not mean "money laundering". More on that and the class later.

Posted by Andy Morriss

Charlie Munger, a lawyer of some accomplishment at Berkshire Hathaway, noted the problem of physics envy (specifically, the real world problems caused by reliance on faulty econ theories) in a 2003 talk given at UC Santa Barbara, "Academic Economics: Strengths and Faults after Considering Interdisciplinary Needs." The one thing I like about Charlie Munger is his relentless focus on real world decisionmaking -- nothing is more relevant for lawyers. [Bill Henderson.]

Law professors rarely engage with these critiques; to acknowledge these critiques, some might argue, is to give them oxygen and legitimacy. I think this approach is a huge mistake. Any enterprise interested in long-term success cares about the perceptions held by its stakeholders -- and adjuncts are definitely in that group. In times of crisis, we need friends, not enemies. Further, Newton, Dolin and Bennett are serious people and very capable lawyers. If you leaf through these articles, you'll see that they read like Brandeis Briefs against the legal education establishment. The authors present thoughtful, fact-based, and (albeit occasionally) trenchant arguments on why we, speaking as a legal education insider, should change.

Simple question: Can any of us identify a single historical example in which the establishment reformed itself because a critic effectively marshaled facts and logic to reveal the errors of its ways? Institutional change doesn't happen that way -- facts and logic are no match for a few thousand egos and pious rationalizations for why others should change, but not me.

The common storyline for institutional change is failure, with the rise of other institutions that better address the social, political and economic needs of stakeholders and broader society. A less common narrative is institutional adaption, thanks in part to (1) the self-interest and survival instincts, and (2) the serendipity of timely, brilliant leadership. (Does the legal academy have a few hundred great leaders?)

That said, Newton, Dolin and Bennett may be on the right side of history. Because of the overproduction of law school graduates and their high levels of debt, we are now at a point when survival for a large proportion of law schools can no longer be taken for granted. "What cannot go on forever, won't." Herbert Stein, economist.

Prediction: In the next few years, some law schools will change and thrive. Others won't and they will fail. There will be nasty recriminations and gnashing of teeth. A few at the very top will throw dice and decide not to change. They will survive, but the innovations taking root in the rest of the law school hierarchy will make them look like anachronisms. It will be a slow decay. In the meantime, some aspects of the Post-Langdellian paradigm will look a lot like the suggestions made by Newton, Dolin and Bennett. In twenty years, maybe sooner, the revolution will be over. Finally, Newton et al. will get a must deserved footnote.